CAMPBELL

v.

STATE OF FLORIDA

DISTRICT COURT OF APPEAL OF FLORIDA

SECOND DISTRICT

PRYCE M. CAMPBELL, III,

Appellant,

v.

STATE OF FLORIDA,

Appellee.

No. 2D2023-0651

March 26, 2025

Appeal from the Circuit Court for Hillsborough County; Christine Marlewski and Paul L. Huey, Judges.

Blair Allen, Public Defender, and A. Victoria Wiggins, Assistant Public Defender, Bartow, for Appellant.

James Uthmeier, Attorney General, Tallahassee, and Krystle Celine Cacci, Assistant Attorney General, Tampa, for Appellee.

SLEET, Chief Judge.

Pryce Campbell challenges his judgment and sentence for trafficking in cannabis between twenty-five and two thousand pounds. On appeal, Campbell argues that the trial court erred in denying his motion for judgment of acquittal. Because the State failed to prove that the quantity of the substance met the statutory weight threshold, we

7 850 So. 2d at 641 ("[C]ase law permits circumstantial evidence to be used to establish the identity of certain controlled substances such as marijuana. . . ."); State v. Raulerson, 403 So. 2d 1102, 1103 (Fla. 5th DCA 1981) ("[I]n addition to the scientific tests, other facts tending to show the identity of the substance, such as its appearance and smell and circumstances under which it was seized, are probative and can meet the State's burden of proof." (quoting Turner v. State, 388 So. 2d 254, 257 (Fla. 1st DCA (1980)). Indeed, courts have long accepted the identification of marijuana by experienced law enforcement personnel without relying on chemical or scientific testing. Sinclair v. State, 995 So. 2d 552, 555 (Fla. 3d DCA 2008) (recognizing that "marijuana identification by nonscientific means is a settled issue in Florida law"); Pama, 552 So. 2d at 311 (permitting "an experienced law enforcement officer" to identify marijuana based on visual examination); Dean v. State, 406 So. 2d 1162, 1164 (Fla. 2d DCA 1981) (permitting a police officer with "substantial experience in narcotics investigation" to identify marijuana); A.A. v. State, 461 So. 2d 165, 166 (Fla. 3d DCA 1984) (permitting officer with "four years in a special narcotics unit" to identify marijuana based on sight, smell, and packaging of the marijuana with "rolling papers"). In fact, in 2013 the Florida Supreme Court explicitly carved out an exception for marijuana with respect to the requirement that the State chemically test every individually wrapped packet of suspect substance to establish the requisite statutory threshold weight for trafficking. Greenwade v. State, 124 So. 3d 215, 229 (Fla. 2013). The court explained that where a substance does not pose "an identifiable danger of misidentification," chemical testing was not required. Id.

8 Until recently, however, all forms of cannabis were illegal—neither medical marijuana nor hemp were excluded from the definition of cannabis. Thus, any green, leafy substance seized that had the wellknown characteristic appearance and smell of cannabis was illegal, and the unique appearance, texture, and odor of cannabis was susceptible to being readily identifiable by experienced law enforcement officers. See Turner, 388 So. 2d at 257 ("[N]umerous cases hold that marijuana is not difficult to characterize without chemical analysis and that testimony of officers who have had experience searching for and identifying marijuana is sufficient." (quoting State v. Otswald, 591 P. 2d 646, 652 (Mont. 1979))); Mishmash v. State, 423 So. 2d 446, 447 (Fla. 1st DCA 1982) ("Law enforcement officials trained in the detection of contraband have no difficulty recognizing both the smell and packaging of marijuana."). However, after the legalization of hemp at the federal and state levels, this is no longer the case, and Greenwade's exception for cannabis is no longer applicable. Legal hemp and illegal cannabis are indistinguishable by appearance, texture, and odor, such that chemical testing to determine the THC content is now needed to avoid misidentification. If the THC concentration is greater than 0.3%, the substance is illegal cannabis, but if it is less than 0.3%, the substance is legal hemp. See § 581.217(3)(d). In this case, Campbell repeatedly testified that he purchased fifty bundles of hemp for $50 apiece in Oregon and that to his knowledge the duffle bags contained hemp, not illegal cannabis. Every witness who testified for the State admitted that they were unable to identify by appearance or odor alone whether the substance found in Campbell's duffle bags was illegal cannabis or legal hemp. The detective handling the K-9 testified that his K-9 could not identify whether the duffle bags

9 contained cannabis, rather it could only alert to odors of illicit substances in general. The detective who stopped Campbell at baggage claim testified that he could not distinguish cannabis from hemp by sight or smell alone. In fact, the only witness able to affirmatively identify the substance as illegal cannabis was the lab analyst who testified that she tested only one of the two samples she was given and that the sample she tested weighed 24.47 grams plus or minus 0.15 grams.² Thus, because she only tested a sample from one bundle, the State only identified the contents of one bundle for purposes of establishing the quantity of cannabis and whether it met the statutory weight threshold for trafficking. Prior to the legalization of hemp, when cannabis possessed a distinctive set of physical characteristics that rendered it amenable to nonchemical identification and there was no identifiable danger of misidentification, it was not necessary to test a sample of the substance in each separate packet in order to draw an inference that the entire amount of suspect drugs was illegal cannabis. Now, however, because there is an identifiable danger of misidentification between legal hemp and illegal cannabis, where the contents of multiple packages are to be considered in proving the quantity of illegal cannabis, the State can no longer rely solely on appearance and odor to extend an inference of illegal cannabis to the remaining untested packets and must chemically test each packet of green, leafy substance to meet the threshold weight

10 required for trafficking.³ To hold otherwise and allow the State to rely on the identification of similar packages of a green, leafy substance by appearance and odor alone would undermine a defendant's presumption of innocence and erroneously negate the State's burden to prove the identity and weight of the alleged substance.⁴ In this case, because only one bundle from Campbell's bags was chemically verified as illegal cannabis and an inference of illegal cannabis could not be extended to the remaining untested bundles, the State did not establish beyond a reasonable doubt that each of the remaining bundles contained illegal cannabis for purposes of proving that the evidence seized met the requisite jurisdictional amount required for conviction under the trafficking statute. Therefore, we conclude that the trial court erred in denying Campbell's motion for judgment of acquittal at trial, and Campbell's conviction for trafficking in cannabis must be reversed. The State did establish, however, that Campbell was in possession of illegal cannabis weighing less than twenty-five pounds based on the 24.47-gram sample from one bundle which tested positive for cannabis. See §§ 893.13(6)(a), 893.03(1)(c). Accordingly, we remand

11 to the trial court with directions to reduce Campbell's conviction to felony possession of cannabis and to resentence him accordingly. Reversed and remanded.

KELLY and VILLANTI, JJ., Concur.

Opinion subject to revision prior to official publication.